State, ex rel., Missouri Highway and Transp. Com'n v. Roth

• Decision Date: 02 June 1987
• Docket Number: No. 51573,51573
• Parties: STATE of Missouri, ex rel., MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Plaintiff-Respondent, v. Donald E. ROTH, Trustee, d/b/a Jordan Blythe Company and Don Roth Development Company, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 19

735 S.W.2d 19

STATE of Missouri, ex rel., MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Plaintiff-Respondent, v. Donald E. ROTH, Trustee, d/b/a Jordan Blythe Company and Don

Roth Development Company, Defendants-Appellants.

No. 51573.

Missouri Court of Appeals,

Eastern District,

Division One.

June 2, 1987.

Motion for Rehearing and/or Transfer Denied July 2, 1987.

Application to Transfer Denied Sept. 15, 1987.

Samuel C. Ebling, David T. Hamilton, Clayton, for defendants-appellants.

Tracey Anne Hunsaker, Paul R. Ferber, St. Louis, for plaintiff-respondent.

KELLY, Presiding Judge.

This appeal is the culmination of protracted proceedings initiated over a decade ago when plaintiff-respondent Missouri Highway and Transportation Commission (hereinafter Missouri Highway) sought to condemn property owned by defendants-appellants Donald E. Roth, trustee, d/b/a Jordan Blythe Company and Don Roth Development Company, and by other persons not parties to this appeal. The condemnation commissioners awarded appellants $4,220,000.00 to which both sides excepted. During the pendency of a jury trial on the issue of damages, Missouri Highway paid the $4,220,000.00 award into the registry of the court which appellants withdrew in October, 1976 under the authority of section 523.053 RSMo 1969 (now 1986).

At the trial in 1983 on the exceptions, the jury returned a verdict assessing the damages of Donald E. Roth at $3,250,000.00, an amount $970,000.00 less than the commissioners' award already received. The judgment entered in accordance with the verdict made no mention of the $970,000.00 deficiency owed Missouri Highway. We upheld the jury award on appeal in State ex rel. Missouri Highway and Transportation Commission v. Roth, 687 S.W.2d 662, 666 (Mo.App.1985), which also raised no issue of the deficiency.

A year later, on March 28, 1986, the Highway Commission filed a motion to correct the judgment nunc pro tunc, asking the trial court to correct its judgment to order that appellants repay Missouri Highway $970,000.00, the amount appellants received under the commissioners' award in excess of the jury verdict. The trial court entered a judgment to that effect. Appellants now challenge the trial court's action claiming it lacked authority to enter the judgment requested. We disagree but, for a different reason, must reverse and remand.

Appellants claim the trial court erred in attempting to amend its original judgment because its jurisdiction had been exhausted after the conclusion of the appeal. Appellants emphasize Missouri Highway had several opportunities to raise the omission of the deficiency prior to the nunc pro tunc motion, including its motion for new trial, its record on appeal, its appellate brief, its reply brief, and its motion for rehearing in the original appeal. Having failed to avail itself of these channels, Missouri Highway sought correction of the judgment by a nunc pro tunc order which appellants deem "misguided." Appellants state that our mandate from the appeal rang the death knell of the case and that Missouri Highway's efforts to resurrect the action were too late. From the foregoing, appellants conclude that, following the appeal, the trial court only had authority to enforce our mandate and not to enter a new judgment by a nunc pro tunc order over one year after our mandate affirming the trial court's original order.

Missouri Highway responds that the original judgment rendered correctly reflected the jury verdict; however, respondent argues the judgment was not recorded in accordance with section 523.045 RSMo 1986, the statutory provision governing the entry of the judgment rendered in a trial on the exceptions in a condemnation case. Appellants reply that the failure of Missouri Highway to submit a proper judgment to the trial court or of the trial court to enter a judgment sua sponte in accordance with the statute is no longer subject to correction by a nunc pro tunc order as proffered by Missouri Highway.

The issuance of our mandate does not necessarily preclude, despite appellant's view, a subsequent nunc pro tunc correction. See e.g. Wiggins v. Perry, 343 Mo. 40, 119 S.W.2d 839, 843 (Mo. banc 1936). A trial court may lose jurisdiction of the case, but not of its records. It has authority, as well after as before the appeal, to amend its records according to the truth. DeKalb County v. Hixon, 44 Mo. 341, 342 (1869). See also Annot., 126 A.L.R. 956, 972 (1940); 4 Am.Jur.2d, Appeal and Error § 354 (1962).

We have no quarrel with appellants' reliance on Warren v. Drake, 570 S.W.2d 803 (Mo.App.1978), for the proposition that the functional boundaries of nunc pro tunc orders are firmly established in this state. 570 S.W.2d at 806. They lie to correct clerical omissions, mistakes or misprisions to make the record speak the truth by evidencing an act done or a judgment actually rendered at a prior time but not carried into or faithfully recorded in the record. Id. . They do not lie to correct judicial errors, mistakes or oversights, or to create a new record or to enter a judgment never made or one different from that actually rendered, albeit the judgment rendered was not the judgment the judge intended to make. Id.

It is evident that Missouri Highway seeks to have the judgment of the trial court corrected and amended to conform to the statutory directive of section 523.045 RSMo 1986 which specifically prescribes what the formal judgment in a condemnation action shall recite. Section 523.045 provides in pertinent part as follows:

If, within thirty days after the filing of any such commissioners' report the condemnor shall have paid the amount of any commissioners' award to the persons named in the petition as owning or claiming any property or rights or to the clerk of the court for them and ... if the amount of such award shall be superseded by a subsequent verdict or amount smaller than the award...